Blank Checks and Imbalances

It was always all about the judges.

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

First the inspector general filed a scathing report, accusing White House and Justice Department hacks of illegal and improper partisan hiring practices at the DoJ. Then a federal district court judge absolutely rejected the Bush administration's broad argument that all close presidential advisers are immune from compelled congressional testimony. The defense rested in the "historic" military tribunal for Salim Hamdan—alleged to have participated in some vague act of DWT (driving while a terrorist). And the House judiciary committee recommended contempt charges against Karl Rove for his failure to show up to testify about the U.S. attorney firings.

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It's becoming fairly clear that former Attorney General Alberto Gonzales lied and that Kyle Sampson lied and that Harriet Miers and Josh Bolten and even Karl Rove will have to testify. It's not at all clear that any of these developments will lead to any serious consequences for the wrongdoers in question as they slow-walk their way toward justice or a pardon. Attorney General Michael Mukasey professes that he is "disturbed," and that's heartening. But we won't be seeing Monica Goodling or Miers or Sampson folding socks in the prison laundry anytime soon.

If there is any real point to these ongoing investigations and reports, it's to help us understand that these scandals are all of a piece. Each legal shortcut has represented a Bush administration effort to circumvent legal processes—usually judicial but sometimes congressional oversight. That's been the point from the outset. Vague promises to heal the bad feelings at Justice or to put the wrongdoers in the naughty chair for a few minutes won't fix anything. Only by returning to a world in which judges are no longer mistaken for the enemy will we begin to repair the damage done.

Start with Judge John D. Bates, who categorically refused yesterday to accept the Bush administration's limitless characterization of executive privilege, finding it to be "without any support in the case law." Ultimately, Bates did nothing more than reaffirm the role of the courts in adjudicating matters of privilege. He found that "it is the judiciary (and not the executive branch itself) that is the ultimate arbiter of executive privilege." This opinion is certainly dramatic, but the underlying legal principle is hardly shocking. The Bush administration, in attempting to insulate itself from judicial scrutiny over the last seven years, made one critical miscalculation: It has consistently attempted to assert legal privileges ranging from the "state secrets" doctrine to an unbounded executive privilege, the contours of which would ultimately be determined by the judicial branch. Since that would require appealing to those same judges who had already been cast as the enemy, and since a strong president never asks for anything, Bush and Co. simply asserted these privileges and told the judges to get lost. It worked OK for a while, particularly in the state secrets cases, where judges were willing to be browbeaten about national security. But you can tell jurists to shut up and look pretty for only so long.

The same principle was at work in the Justice Department hiring scandal. Goodling and her cronies attempted to replace real immigration judges with party loyalists. They rejected real prosecutors for those who belonged to the right clubs or shared their irrational loathing for the spotted owl. But also recall that the U.S. attorney scandal started to unravel only after high-ranking officials in the Bush administration tried to surreptitiously carve judges (and the Senate) out of the legal process for confirming interim U.S. attorneys. It was the White House's decision to do away with judicial oversight that started to stink up the Justice Department first.

Cue Michael Mukasey. Having now failed twice to cut courts out of the enemy-combatants game, Mukasey, in a July 21 speech at the American Enterprise Institute, called on lawmakers to again put federal district judges out of the habeas corpus business. Repeating here for the subtext-impaired: Courts are somehow bad, and judges are somehow dangerous. State secrets, secret evidence, and trials without defendants in attendance are the real building blocks of American justice.

None of this should have been all that surprising. The whole point of a system of checks and balances is that the branches strive and fight for supremacy, like a batch of alpha primates. Perhaps the only thing that's unexpected is that as scandal piles atop scandal, it becomes plain that for years, as the administration secretly cut the judiciary out of the picture, they somehow truly expected that someday they would be thanked for it.